U.S. Supreme Court weakens Right To Counsel – Rules police can initiate suspect’s questioning after he has requested counsel

The U.S. Supreme Court ruled on Tuesday that police, under certain circumstances, can initiate an interrogation of a suspect without the defendant’s lawyer being present.

By a 5-4 vote, the conservative majority overruled a 23-year-old Supreme Court decision that barred the police from initiating questioning after a defendant asserted the right to an attorney at an arraignment or similar proceeding.

The 1986 decision held that once a defendant invoked the right to counsel, only the suspect, and not the police, can initiate the contact.

The ruling was the latest in a recent string by conservative justices expanding the power of police to question suspects, but it does not change the landmark 1966 ruling barring the police from questioning a suspect who invoked the right to remain silent or have a lawyer present.

The decision was a defeat for Jesse Jay Montejo, a Louisiana death row inmate. He was convicted and sentenced to death for the murder of a dry-cleaning operator during a robbery in 2002.

He initially waived his right to a lawyer and was questioned by the police. He told several conflicting stories. Several days later, he appeared in court for a preliminary hearing and a local judge appointed a lawyer to represent Montejo, who could not afford an attorney.

Later that day, police investigators approached Montejo in prison and he again waived his right to a lawyer.

But Montejo later claimed the police had violated his constitutional right to counsel by interrogating him without his lawyer being present and pressuring him to write a letter confessing and apologizing to the victim’s wife. That letter was later introduced as evidence against him at his trial.

Writing for the court majority, Justice Antonin Scalia said there was little if any chance a defendant will be badgered into waiving the right to have counsel present during police-initiated questioning.

In overruling the 1986 decision, Scalia said, “The considerable adverse effect of this rule upon society’s ability to solve crimes and bring criminals to justice far outweighs its capacity to prevent a genuinely coerced agreement to speak without counsel present.”

Liberal Justice John Paul Stevens, the author of the 1986 decision, disagreed.

In dissent, Stevens said the dubious benefits of overruling the decision are far outweighed by damage to the rule of law and the integrity of the constitutional right to an attorney.

[JURIST] The US Supreme Court [official website] issued three opinions on Tuesday. In Montejo v. Louisiana [Cornell LII backgrounder; JURIST report], the Court decided 5-4 to overturn [opinion, PDF] its 1986 decision in Michigan v. Jackson [text], which found that the Sixth Amendment required that police cease interrogations after a suspect had invoked his right to counsel, ruling that the Fifth Amendment provides adequate protection. Writing for the majority, Justice Antonin Scalia found that under other precedent:

a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. … [I]t is hard to see why it would not also suffice to protect that same choice after arraignment.

The Court rejected the reasoning of the Supreme Court of Louisiana [official website] that Jackson required defendants to affirmatively assert their right to counsel, and remanded the case to allow Montejo to seek exclusion of inculpatory statements made after a hearing to appoint counsel under the Fifth Amendment protections in United States v. Edwards. Justice John Paul Stevens, who wrote the opinion in Jackson, filed a dissenting opinion to which Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. Breyer also filed separate dissenting opinion.

The Court also ruled [opinion, PDF] 5-4 in Haywood v. Drown [Cornell LII backgrounder; JURIST that New York Correction Law § 24 , which prevents state trial courts from hearing claims for money damages against prison employees whether based on federal or state law, was a violation of the Constitution's Supremacy Clause. Writing for the majority, Stevens said:

That New York strongly favors a rule shielding correction officers from personal damages liability and substituting the State as the party responsible for compensating individual victims is irrelevant. The State cannot condition its enforcement of federal law on the demand that those individuals whose conduct federal law seeks to regulate must nevertheless escape liability.

Saying that the law "is effectively an immunity statute cloaked in jurisdictional garb", the Court struck down the decision [opinion, PDF] of the Court of Appeals of New York . Justice Clarence Thomas filed a dissenting opinion, which Chief Justice John Roberts and Scalia joined, and which Justice Samuel Alito joined in part.

Finally, the Court ruled [opinion, PDF] unanimously in Abuelhawa v. U.S [Cornell LII backgrounder; JURIST that a defendant who used a cellphone for the misdemeanor purchase of cocaine cannot be charged with a felony for using a "communication facility" to facilitate the distribution of an illegal drug under 21 USC § 843(b) [text]. The Court reasoned that the government’s interpretation of “facilitate” exposed a first-time buyer using a phone “to punishment 12 times more severe than a purchase by a recidivist offender and 8 times more severe than the unauthorized possession of a drug used by rapists,” and was clearly not in line with Congress’ intent, since it conflicts with the classification of the drug sale itself as a misdemeanor.